Gabe Galanda Publishes on Legal History of Washington Tribal-State Relations

Gabe Galanda has published an article, "Galanda Washington Tribal-State Relations Bar Bulletin," in this month's King County Bar Bulletin, which is themed, "polarity." Dedicating the piece "to those Washington Indians who fought the fish wars and to the tribal lawyers who won the Boldt Decision," he recaps modern Indian legal history in Washington and concludes with criticism that the Washington Supreme Court's three most recent Indian law decisions are regressive.

Polarity accurately describes the historic legal relationship between the State of Washington and those Tribal Governments indigenous to our state. Tribal sovereignty, i.e., “the right of reservation Indians to make their own laws and be ruled by them,” has always been antipodal to state sovereignty as a matter of Anglo-American jurisprudence. So much so, that by the late 1800s nascent states were deemed the Tribes’ “deadliest enemies” by none other than the U.S. Supreme Court. And over the ensuing century, tribal and state governments waged a zero-sum battle over who would regulate Indian Country.

But today, in what is the era of Indian self-determination as a matter of both federal policy and tribal behavior, tribal/state opposition is waning. As noted by leading Indian law scholar, Professor Matthew T. Fletcher:

States and tribes are beginning to smooth over the rough edges of federal Indian law — jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority — through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes.

Washington tribal/state relations and the new political relationship between our state’s sovereigns are indeed evolving. Still, based on the Washington Supreme Court’s three most recent three Indian law decisions, more progress is required to achieve tribal/state congruity throughout official state policy. In particular, the increasingly cooperative relationship between the Tribes and State must be better appreciated when the Court next evaluates regulatory power or adjudicatory jurisdiction in Washington Indian Country.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Round Valley Lawyer Gabe Galanda Named Indian Country "Visionary"

Richard Walker of the Indian Country Today Media Network published an article titled, "5 Visionaries Who See a Brighter Future for Indian Country," naming Gabe Galanda as one of "five people are rocking the world with their forward thinking, innovation and commitment to social justice."

3. Gabe Galanda, Round Valley Indian Tribes: Paving the Red Road to Recovery for Inmates

The efforts of this Seattle-based lawyer are helping Native Americans in prison to walk the red road to recovery. Galanda formed the nonprofit organization Huy (pronounced “Hoyt”) essentially meaning “I’ll see you later.” (Coast Salish people do not have a word for “goodbye.”) In Washington state, Huy won changes in policies that blocked Native American inmates’ access to traditional religious practices and sacred items.

Huy is lobbying for similar changes nationwide. The organization asked the U.N. Human Rights Committee for an inquiry into restrictions upon Native inmates’ religious freedoms, and appeared as a friend of the court in support of those freedoms. Galanda argues that restricting such freedoms violates federal, state and international law. For some Native inmates, walking the red road while behind bars is the only road to rehabilitation and survival.

“Today’s powwow, everything that we do is to give back, to show our kids and our families that we’re going to work on getting back to those ways, getting back to spirituality and things that matter,” inmate Seymour Ruben told the Cheney Free Press during an August 1 powwow at Airway Heights Corrections Center.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe can be reached at 206.300.7801 or gabe@galandabroadman.com.

Tribal Lawyer Ryan Dreveskracht To Address Nisqually Community Re Indian Voting Rights

On Tuesday, November 5, Ryan Dreveskracht will deliver a speech to the Nisqually Tribe regarding Indian Voting Rights. Ryan will speak from his forthcoming law review article, tentatively titled,"Reenfranchising the Native Vote After Shelby County v. Holder." In that paper, he argues that Section 5 of the federal Voting Rights Act "is both an appropriate and necessary measure to prevent ongoing voting discrimination targeting Native American citizens, and concludes that "Congress not only has the power to compel preapproval of state voting legislation that is applicable to Indian Country, but it has an obligation to do so."

Ryan's speech will occut in the Nisqually Library, starting at 5:30 PM.

Ryan Dreveskracht is an Associate at Galanda Broadman, PLLC.  His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development.  He can be reached at 206.909.3842 or ryan @galandabroadman.com.

Silver Linings to Wash. Supreme Court's Playbook in State v. Clark

Today the Washington State Supreme Court ruled against a Colville tribal member and pro-tribal friends of the court in State v. Clark. But, in the case --which Gabe Galanda co-argued, on behalf of the ACLU--there are stark silver linings that affirm tribal sovereignty, especially in Washington Indian Country and Treaty territory. The case concerned whether a county search warrant, obtained and executed by city police without any attempt to involve the tribal police or court, lacked authority of law, since it authorized the search of a tribal member defendant’s home situated on reservation trust land. The Supreme Court affirmed the defendant's "conviction for theft because the trial court properly denied his motion to suppress evidence gathered on tribal trust land without a tribal warrant."

But the silver linings lie in the Court's reasoning:

Clark asks us to recognize the Colville Tribes' interest by adopting the test used by the Supreme Court of Idaho in Matthews, which measures the infringement of tribal sovereignty by looking to whether the State ignored governing tribal procedures while serving criminal process. Ifthe State did so, then under Matthews the State undermined tribal self-government. The material facts of Matthews are quite similar to those of Hicks: state police searched tribal property for an off-reservation crime. Hicks' holding has superseded Matthews for this particular factual scenario. However, we agree that Matthews serves as the starting point for searches of reservation lands where Hicks is distinguishable, such as where the crime occurs on reservation land over which the State has jurisdiction. Consequently, we hold that the State does not infringe tribal sovereignty by searching reservation lands unless it disregards tribal procedures governing the execution of state criminal process.

What this means is that state law enforcement must follow tribal procedures governing the execution of state criminal process, before searching reservation lands. In Clark, the Court found the Colville tribe's procedure wanting because it "does not govern the way the State executes its own process. Indeed, the tribal warrant provision does not guarantee that the State could execute its warrant as the tribal court could refuse to issue a tribal warrant."

Still, if tribes promulgate clear codified procedures for the execution of state process on reservation lands (18 U.S.C. 1151), states and state police must honor those procedures. And crucially, that is notwithstanding Nevada v. Hicks. This is the starkest silver lining from Clark.

The other silver lining lies in footnote 9 to the last page of the opinion: "Clark does not argue that any treaty provision creates governing procedures for executing a state search warrant . . . We do not foreclose the possibility that the State would infringe tribal sovereignty by disregarding governing procedures created by such provisions with our opinion today. See State ex rel. Merrill v. Turtle, 413 F.2d 683, 686 (9th Cir. 1969)."  In other words, Treaty tribes, such as all Stevens Treaty signatories, have an even stronger basis to force state police to honor codified tribal procedures that govern state process on reservation lands, especially through inherent territorial exclusion rights. That, too, is notwithstanding Hicks, which did not involve Treaty rights.

So although the decision was a tribal defeat, there are silver linings to the Washington Supreme Court's playbook in Clark.

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe assists tribal governments and businesses in all matters of tribal sovereignty and self-governance, especially in legal opposition to federal, state and local government encroachment.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.  His argument in Clark can be watched on TVW (at 35:49).

Carolina Supreme Court Goes Rogue: Immediately Orders Baby Veronica Removed

Little has changed since the Indian Child Welfare Act (“ICWA”) was enacted more than thirty years ago to address what Congressional testimony in 1974 revealed to be “the most tragic aspect of Indian life” — that is, the “wholesale removal of Indian children from their homes . . .” and their placement with non-Indian adoptive parents and foster homes.  Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989). Last month the U.S. Supreme Court issued a decision diminishing the applicability of the ICWA, twisting the meaning of “continued custody” to find the statute inapplicable to prevent the removal of an Indian child from her biological father’s custody and home.  This was the tragic culmination of a long-running child-custody battle, widely reported in the press as the “Baby Veronica case.”

Baby Veronica’s father is a citizen of the Cherokee Nation and U.S. veteran who mistakenly signed away his parental rights on the eve of his deployment to war.  But when he discovered that an adoption of his child was at stake, he quickly moved to assert his inherent rights as a father so that he could raise his own daughter.  The Supreme Court’s holding quickly resulted in the summary eradication of an Indian father’s parental rights.

Beyond that tragedy, the Supreme Court’s decision threatens the efficacy of the statute enacted to address what the Court recalcitrantly acknowledged were “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”

In a move showing that little if any real progress for Indian children and Indian Country as a whole has been made since the ICWA’s enactment, the South Carolina Supreme Court went a large and destructive step beyond the High Court’s mandate in the Baby Veronica case.  Because the  Court’s order was limited to a finding that the ICWA was inapplicable in this case, the lower courts should still be able to consider other laws potentially protecting the biological father’s rights, or at least ensuring that any further order is in Baby Veronica’s best interests.  In an order  handed down on July 17, however, the South Carolina Supreme Court demanded “prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl.”

As two of the five South Carolina Supreme Court Justices declared in their dissent, the South Carolina Supreme Court goes far beyond the U.S. Supreme Court’s opinion in immediately terminating the Indian father’s parental rights without regard to any other applicable laws — or what is in Baby Veronica’s best interests:

[n]othing in the [U.S. Supreme Court’s] majority opinion suggests, much less mandates, that this Court is authorized to reject the jurisdiction of other courts based upon a 1989 case deciding jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), nor obligated to order that the adoption of this child by Adoptive Parents be immediately approved and finalized.  Further, the majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest.

This heart-wrenching case highlights not only the fact that little has changed for the better since the ICWA’s enactment; it also serves as a call to action for Indian Country.  Those who care about the welfare of Indian children in America must raise their voices and demand Congress and the President act to strengthen the ICWA.  Because as we see with Baby Veronica and her father’s case, this statute has clearly failed to stop the assaults on Indian families as it was intended to do in 1978.

Only time will tell if Adoptive Couple v. Baby Girl will make matters worse for Indian families and children.  I suspect it will.

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and joe@galandbroadman.com.  

National Indian Congress Issues American Indigenous Prisoners' Religious Freedoms Proclamation

In June, the National Congress of American Indians (NCAI) passed an emergency measure, Resolution #REN-13-005, observing that "the inherent rights of incarcerated Indian peoples’ freedom to believe, express, and exercise traditional indigenous religion, are too frequently violated by federal, state, and local government actors in the United States." Resolution #REN-13-005 was passed in specific reaction to the State of California's "emergency" rulemaking to outlaw various Native American sacred items from religious use in state prisons.

NCAI resolved that it “denounces and opposes any federal, state or local government restrictions placed upon incarcerated Native Peoples’ inherent rights to believe, express, and exercise their traditional religions and practices.”

NCAI further resolved to "call[] upon the United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya, for an investigation into the pervasive pattern in the United States of increasing state and local restrictions on the religious freedoms of incarcerated Native peoples in the United States."

To read NCAI Resolution #REN-13-005, click here.

ATNI Resolves to Protect American Indigenous Prisoners' Religious Freedoms

This week, the Affiliated Tribes of Northwest Indians (ATNI) resolved that it "denounces and opposes any inappropriate or illegal federal, state or local government restriction upon incarcerated American Indigenous Peoples’ inherent rights to believe, express, and exercise traditional indigenous religion, including any such restriction that does not advance the shared penological goals of federal, state and American indigenous governments or that was not preceded by meaningful tribal consultation with affected ATNI tribes or other American indigenous governments." ATNI further resolved to denounce and oppose "the California Department of Corrections and Rehabilitation’s 'emergency' amendments to Section 3190(b) of the California Code of Regulations, Title 15, Crime Prevention and Corrections, and related regulatory restrictions regarding American Indigenous Peoples’ religious properties and sweatlodge ceremonies, because those state regulations violate federal, state and international law, were promulgated without any consultation with American indigenous governments, and are contrary to the penological interest of rehabilitating incarcerated American Indigenous Peoples."

To read ATNI Resolution #13-63, click here.

Indian Civil Rights Lawyer Gabe Galanda Decries States' Attack on Native Prisoners' Religious Freedoms

Gabe Galanda is quoted in a Native News Network posting, "Tribes & ACLU Team to Support California Indigenous Prisoners' Religious Freedoms," regarding the California Department of Corrections and Rehabilitation's issuance of a provisional "emergency" regulation denying indigenous prisoners access to sacred items used in religious ceremony and access to sweat lodge ceremony.

“We are thrilled that the ACLU joined forces with Indian Country to decry the state of California's violation of indigenous prisoners' human and civil rights to worship in traditional Indian ways,”

said Gabriel Galanda, Chairman of the Huy Board of Advisors.

“Those violations are also now happening in places like Montana, South Dakota and Texas. But those state discriminatory practices are not going unnoticed and they will not stand.”

Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm.  He is an enrolled member of the Round Valley Indian Tribes of Covelo, California.  Gabe can be reached at 206.691.3631 or gabe@galandabroadman.com.

California ACLU Joins Inter-Tribal Protest of State's Violation of Native Prisoners' Rights

This week, the American Civil Liberties Union Foundation of California joined an inter-tribal coalition, comprised of Huy, the Round Valley Indian Tribes, the Pit River Tribe, the National Native American Bar Association, and California Indian Legal Services, in formal protest of the California Department of Corrections and Rehabilitation's issuance of a provisional "emergency" regulation denying indigenous prisoners access to items used in religious ceremony and access to sweatlodge ceremony. The California ACLU's protest letter is here and Huy's protest letter is here.

This national inter-tribal protest movement was featured by Indian Country Today last week. In short:

In February, the California Department of Corrections and Rehabilitation (“CDCR”) provisionally outlawed, on a so-called “emergency” basis, American indigenous prisoners’ religious use of: tribal sacred medicines like kinnikinnick, copal, and osha root; indigenous sacred items like pipes and pipe bags, drums and other instruments, and water dippers; and tribal religious necessities like cloth for prayer ties, beads and beading supplies, and animal hides and teeth. It appears the indigenous prisoners’ sweatlodge ceremonies have also been curtailed being reduced from occurring every weekend to only one or two times per month.

Although the public comment deadline has passed, any person, group or tribe can still submit written comments about what remains a proposed CDCR religious property regulation to CDCR, Regulation and Policy Management Branch (RPMB), P.O. Box 942883, Sacramento, CA 94283-0001, or by fax to (916) 324-6075, or by e-mail to RPMB@cdcr.ca.gov. The CDCR will soon consider comments, evaluate proposed alternatives, and issue a final rule.

We continue to urge your written and public comment in opposition to the State of California’s unlawful effort to unduly restrict American indigenous prisoners’ freedom to believe, express and exercise traditional indigenous religion.

For additional information, contact Huy Chairman Gabriel S. Galanda, at (206) 300-7801 or gabe@galandabroadman.com.

Huy Launches Formal Opposition to Caifornia's Violation of Native Prisoners' Religious Freedoms

Today, Huy joined the Round Valley Indian Tribes, Pit River Tribe Huy, the National Native American Bar Association and others in formal protest of the California Department of Corrections and Rehabilitation's issuance of a provisional "emergency" regulation denying indigenous prisoners access to items used in religious ceremony and access to sweatlodge ceremony. Huy's protest letter is here. Huy urges others to do so by written communication or in person by tomorrow, May 7, as outlined below. This national inter-tribal protest movement was featured by Indian Country Today last week. In short:

In February, the California Department of Corrections and Rehabilitation (“CDCR”) provisionally outlawed, on a so-called “emergency” basis, American indigenous prisoners’ religious use of: tribal sacred medicines like kinnikinnick, copal, and osha root; indigenous sacred items like pipes and pipe bags, drums and other instruments, and water dippers; and tribal religious necessities like cloth for prayer ties, beads and beading supplies, and animal hides and teeth. It appears the indigenous prisoners’ sweatlodge ceremonies have also been curtailed being reduced from occurring every weekend to only one or two times per month.

Any person, group or tribe may submit written comments about what remains a proposed CDCR religious property regulation to CDCR, Regulation and Policy Management Branch (RPMB), P.O. Box 942883, Sacramento, CA 94283-0001, or by fax to (916) 324-6075, or by e-mail to RPMB@cdcr.ca.gov. All written comments must be received by the close of the public comment period this Tuesday, May 7, 2013, at 5:00 p.m.

Also, a public hearing will be held this Tuesday, May 7, 2013 from 10:00 a.m. to 11:00 a.m. in Sacramento, specifically in the Kern room, located at 151 S Street, North Building, 95811. The CDCR will then consider comments, evaluate proposed alternatives, and issue a final rule.

We urge your timely written and public comment in opposition to the State of California’s unlawful effort to unduly restrict American indigenous prisoners’ freedom to believe, express and exercise traditional indigenous religion.

For additional information, contact Huy Chairman Gabriel S. Galanda, at (206) 300-7801 or gabe@galandabroadman.com.